An employee who was repeatedly disciplined and then fired by a retailer for making racist remarks failed to establish a prima facie case of gender bias under Title VII, found a federal district court in Texas, noting that she admitted making most of the comments and did not show similarly situated males were treated more favorably (Moyer v Jos. A. Bank Clothiers, Inc, August 19, 2013, Lindsay, S). The court also granted summary judgment on her HWE claim because she could not show the alleged harassment was based on gender and she admitted it did not affect her ability to do her job. Her defamation claims based on a report that she used the n-word also failed, as did her negligence and other state law claims.

The employee was an assistant manager at two Jos. A. Bank stores and, later, a “third key” at another. While at the third store, she received several disciplinary actions for her inappropriate comments. For example, she told a sales associate to sell his parents’ car in “colored town;” told a Jewish customer to “quit trying to Jew me down;” and told another associate who was folding clothes to “get the ni**er to do that.” She was fired after the latter incident for violating company policies. She sued the retailer, asserting a plethora of claims, including gender bias, retaliation, sexual harassment, defamation, emotional distress, and theories grounded in negligence. The employer moved for summary judgment, which was granted in full.

Gender bias. Finding that the employee failed to establish a prima facie case of sex discrimination under Title VII, the court noted that she did not dispute making the racist comments, except for the one with the n-word. Further, the evidence established that the employer’s antiharassment and antidiscrimination policies were clear and the employee knew of them. However, despite her admitted violation of the policies, she could still show gender bias if similarly situated male employees engaged in similar acts but were not punished similarly. This she failed to do. Her unspecific and unsubstantiated assertions that as a woman, she “was subject to more severe disciplinary actions for less offensive words” was simply not enough to raise a genuine dispute of material fact.

Even if she could make out her prima facie case, the employer provided a legitimate, nondiscriminatory reason for its action — her violations of work rules — and she failed to show that this reason was pretextual. She claimed that she was “innocent” of misconduct because her “colored town” and “Jew me down” comments were isolated and made with no intention of harm or hostility toward anyone and that the employer acted hastily in firing her. However, that argument missed the mark because the ultimate issue was whether the employer acted based on her gender, not whether her conduct should have been treated as violating the employer’s policy. Indeed, her actual “innocence” as to the third violation was irrelevant as long as the employer reasonably believed the accusation was true and acted on it in good faith. Her claim therefore failed.

HWE claim. Likewise, the employee failed to make out a prima facie case of sexual harassment because she could not prove that the alleged misconduct was based on her gender, that it affected the terms and conditions of her employment, or that the employer knew or should have known about it. Indeed, her deposition revealed that the conduct by several male employees about which she complained was not directed at her specifically, much less directed at her based on her gender. For example, the manager that she alleged would “chew” her out and yell at her, also yelled at other employees, both male and female. And, a male subordinate who once made a lewd comment about “edible lube” (talking to her about his boyfriend) and sent her emails about bodybuilders also allegedly harassed her for things unrelated to sex, including political views and work ethic.

In addition, the fact that employees used the term “wife-beater” to describe an undershirt was not evidence of gender bias. While the term was demeaning when considered in its historical context, it was used by both males and females to describe clothing, and its use did not amount to harassment based on gender. Her other allegations suffered from the same flaw, and the court concluded they were insufficient to suggest that she was subjected to unwelcome sexual harassment based on her gender.

Nor did her allegations, assuming they demonstrated sex-based harassment, rise to the level of severity or pervasiveness required to support a HWE claim. The comments may have been crude and tactless, but they were not sufficiently abusive, hostile, or severe to be actionable. Indeed, even the employee described some of the comments as “joking or friendly harassment.” Moreover, she testified that despite the comments, her ability to perform her job was not affected. Summary judgment was thus appropriate.

Defamation. The employee’s defamation claim was based on a coworker’s report that she used the n-word when referring to another employee; another employee lying about her, which “marred” her personnel file; and the regional manager’s investigation of her misconduct. Finding her claim insufficient as a matter of law, the court agreed with the employer that she failed to identify a statement by either the lying employee (whom she referred to as “Martin somebody”) or the regional manager. As to the latter, she simply asserted that it was “apparent from my personnel file that he consulted with other employees of color.” That was not enough, particularly because she also testified that she had no knowledge of what the manager said to any employee about her.

Moreover, the coworker’s report to the employer that the employee used the n-word did not fall within the scope of the coworker’s general authority in furtherance of the employer’s business. Thus, under Texas law, the employer could not be held vicariously liable for the statement. Indeed, the Texas Supreme Court has stated that even when an employer requires employees to discuss coworkers in the course of workplace misconduct investigations, such discussions are not “in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.”

Self-publication. Summary judgment was also granted on the employee’s claim for defamation by self-publication, which was based on her being “forced to tell what was said about [her] to two prospective employers and [her] current employer” when they asked why she was no longer working for Jos. A. Banks. To state such a claim, the employee would have to show that she published allegedly defamatory statements without knowing the defamatory nature of the matter, and this she could not do. Indeed, she testified that she knew at the time she was fired that the coworker’s statement concerning her use of the n-word was defamatory.

Emotional distress. Under Texas Supreme Court authority, if a plaintiff files claims for intentional infliction of emotional distress (IIED) and for sexual harassment, and the “gravamen” of the complaint is sexual harassment, she must proceed solely under a statutory claim unless additional facts support an independent tort claim for IIED. It was clear in this case that the employee’s IIED claim was based on the same alleged misconduct as her Title VII HWE claim. Thus, her tort claim was barred. Even assuming she established additional facts, her complaints centered on ordinary employment disputes (such as being chewed out for being late), which are not actionable as IIED.

Other claims. The employee asserted that her demotion and transfer to the third store were retaliation for having told the store manager (who allegedly yelled at everyone regardless of gender) that he had an anger problem. She also claimed that the manager had a crush on her and retaliated because she did not return his affections. However, she failed to produce any evidence that she engaged in an activity protected by Title VII.

The employee’s intrusion into seclusion claim failed as a matter of law because the conduct of which she complained (being called at home by a manager) did not constitute a physical intrusion or eavesdropping on her conversation with the aid of wiretaps, microphones or spying. Because the employee’s negligent hiring, negligent training, and other claims grounded in negligence relied on the same allegations as her Title VII gender bias and sexual harassment claims, they were preempted by antidiscrimination statutes and by the Texas Workers Compensation Act. Summary judgment was thus granted on these claims as well.